Citation Nr: 0505092
Decision Date: 02/23/05 Archive Date: 03/04/05
DOCKET NO. 02-05 498 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Norman R. Zamboni, Attorney at
Law
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Salari, Counsel
INTRODUCTION
The veteran had active duty service from February 1959 to
April 1960.
This appeal comes before the Board of Veterans' Appeals
(Board) from an October 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
White River Junction, Vermont. The case was subsequently
transferred to the Roanoke, Virginia, RO.
In an August 2002 decision, the Board denied the veteran's
claim. Pursuant to a Joint Motion for Remand (Joint Motion),
the Court of Appeals for Veterans Claims (Court), in a July
2003 Order, vacated and remanded this case to the Board. In
February 2004, the Board remanded this matter to the RO for
additional development. Additional development was
accomplished and the case has been returned to the Board for
further appellate consideration.
FINDINGS OF FACTS
1. The veteran has provided testimony under oath which
directly conflicts information she provided to her health
care providers; she is therefore not credible.
2. The veteran did not undergo personal assault during
active duty service.
CONCLUSION OF LAW
PTSD was not incurred or aggravated in service. 38 U.S.C.A.
§§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102,
3.159, 3.303, 3.304 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA) is
applicable to this appeal. At the outset, the Board finds
that there has been compliance with the duties imposed under
The Veterans Claims Assistance Act of 2000 (VCAA), codified
at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (West
2002).
In Pelegrini v. Principi, 18 Vet.App. 112, (2004), referred
to as Pelegrini II, the United States Court of Appeals for
Veterans Claims (Court) essentially held that VA must provide
notice "upon receipt" and "when" a substantially complete
application for benefits is received. This mandates that
notice precede an initial unfavorable AOJ (agency of original
jurisdiction) decision on a service-connection claim. The
Court also specifically recognized that where the notice was
not mandated at the time of the initial AOJ decision, as is
the situation in the veteran's case, the AOJ did not err in
not providing such notice specifically complying with section
5103(a)/§ 3.159 because an initial AOJ adjudication had
already occurred.
The veteran's claim was received in April 2000, prior to
enactment of VCAA. VA has complied with VCAA duties by means
of letters sent to the veteran in June and July 2004, as well
as the October 2004 supplemental statement of the case. She
has been provided notice of what VA was doing to develop the
claim, notice of what she could do to help her claim, and
notice of how her claim was still deficient. No additional
pertinent evidence has been identified by the appellant as
being available but absent from the record.
For the reasons enumerated above there is no indication that
there is any prejudice to the veteran by the order of the
events in this case. See Bernard v. Brown, 4 Vet. App. 384
(1993). Any error in the sequence of events is not shown to
have any effect on the case, or to cause injury to the
veteran. As such, the Board concludes that any such error is
harmless, and does not prohibit consideration of this matter
on the merits. See ATD Corp. v. Lydall, Inc., 159 F.3d 534,
549 (Fed. Cir. 1998); Miles v. Mississippi Queen, 753 F.2d
1349, 1352 (5th Cir. 1985).
The appellant contends that she was sexually assaulted
repeatedly during service and that as a result, she suffers
from PTSD. She apparently did not report and was not treated
for the assaults in service. She did, however, report that
she went to the hospital with complaints of stomach pain.
This treatment was reportedly sought for the sole purpose of
having some time away from the circumstances of the sexual
assaults.
Service connection is granted when the evidence establishes
that a particular injury or disease resulting in disability
was incurred coincident with service, or if preexisting
service, was aggravated therein. 38 U.S.C.A. § 1130;
38 C.F.R. § 3.303.
Service connection for PTSD requires medical evidence of a
diagnosis; a link, established by medical evidence, between
current symptoms and an inservice stressor; and credible
supporting evidence that the claimed inservice stressor
occurred. 38 C.F.R. § 3.304(f). If PTSD is based on
inservice personal assault, evidence from sources other than
the veteran's records may corroborate the veteran's account
of the stressor incident. Examples of such evidence include,
but are not limited to: records from law enforcement
authorities, rape crisis centers, mental health counseling
centers, hospitals or physicians; pregnancy tests or tests
for sexually transmitted diseases; and statements from family
members, roommates, fellow service members, or clergy.
Evidence of behavior changes following the claimed assault is
one type of relevant evidence that may be found in these
sources. 38 C.F.R. § 3.304(f) (3).
The veteran's service medical and most service personnel
records were destroyed in a July 1973 fire at the National
Personnel Records Center (NPRC). Because of this, there is a
heightened duty to assist the claimant. See Moore v.
Derwinski, 1 Vet. App. 401, 406 (1991). Here, VA has
attempted to obtain additional information from the appellant
in an attempt to reconstruct her service records. VA also
asked that she provide any service records within her
possession. She indicated that she did not have any service
records and could provide little information regarding her
service. Furthermore, the veteran has provided very little
information regarding any medical treatment from the time of
her separation from service until 1991. The Board is
satisfied that VA has made every effort to secure any
additional available service records, and that any further
effort would be fruitless.
A statement regarding her inservice stressors, received in
May 2000, states that the veteran was ordered to have sex
with her supervisor, an officer, in 1959 while assigned to
the 78th Fighter Wing ADC and stationed at Hamilton AFB,
north of San Francisco. Another incident occurred when she
was raped by officer on the drive home, after she baby-sat
his children. She could not remember the names or number of
men who abused her and drank alcohol to escape. She told no
one and indicated that there were no counselors or crisis
centers to talk to in the 1950's. She did report to the base
hospital complaining of a stomachache to escape for a while.
In a VA questionnaire, also submitted in May 2000, she
indicates that she did not make a sudden request for a change
in MOS or duty assignment, but had episodes of depression,
increased use of over the counter medication and alcohol
abuse.
A review of the veteran's treatment records indicates that
she first reported having been exposed to in-service sexual
trauma in 1998. A July 2000 letter from Madeleine Tobias, MS
RN CS, a clinical coordinator and veterans sexual trauma
counselor at the White River Junction, Vermont, Vet Center,
noted that the veteran had been a client at the Vet Center
since 1998. Ms. Tobias indicated that "[u]pon taking a
military history, it became readily apparent that she [the
veteran] had suffered considerable sexual harassment and
abuse during her time of military service." The letter also
noted that due to the political and social climate at the
time, she reportedly had little recourse but to suffer these
indignities in silence. However, it was also apparent that
they had a serious effect upon her emotionally. In addition,
the letter indicated that the appellant abused alcohol as a
means of dealing with negative affect. The letter further
indicated that she exhibited many of the symptoms common to
women who have been sexually exploited.
A November 2000 letter from Scott Jacobs-Rebhun, M.D., a
staff psychiatrist at the White River Junction, Vermont, VA
Medical Center (VAMC), addresses the etiology of the
veteran's PTSD. In this letter, Dr. Jacobs-Rebhun reports
that he had been treating the appellant for several years for
major depressive disorder, PTSD, and alcohol dependence. The
letter indicated that these disorders were clearly linked to
the appellant's experience in the military. Dr. Jacobs-
Rebhun stated that as outlined in two letters to the Board,
the claimant experienced sexual trauma repeatedly in the Air
Force. This ranged from harassment, unwanted advances, and
manipulation, to rape. These events evoked feelings of fear
and helplessness, as they would for almost anyone. This
satisfied criterion A for PTSD. She experienced these in
several ways, including intrusive memories, nightmares, and
intense emotional and physiological reaction to reminders of
the trauma. This satisfied Criterion B for PTSD. With
regard to Criterion C, she reportedly tried to avoid these
memories for many years by pushing the memories aside,
distracting herself, and numbing the feelings with alcohol.
Dr. Jacobs-Rebhun stated that the appellant's depression was
closely related to her military trauma and that her alcohol
dependence grew out of her attempts to numb the feelings and
avoid the memories associated with sexual trauma.
An April 2001 Clinician Administered PTSD Scale, administered
by Candice M. Monson, Ph.D., a clinical psychologist,
indicated that upon structured interview and by self-report,
it was determined that the veteran met the criteria for PTSD
related to military sexual trauma. Dr. Monson's report
indicates that the appellant reported the in-service assaults
and her reaction to the assaults to Dr. Monson. The results
of the tests indicate that she met the criteria for PTSD.
In an October 2001 letter, Vance Watts, M.D., a psychiatrist
at the White River Junction VAMC, notes that the veteran had
had long-standing problems with depressive and anxiety
symptoms and had been diagnosed with PTSD and major
depression. Dr. Watts indicated that he had conducted very
specialized laboratory tests and that these tests showed a
specific abnormality in the appellant's stress hormone system
involving cortisol regulation. These findings were widely
reported in the medical literature as consistent with PTSD
and could also indicate a more chronic course of PTSD. It
seemed likely that she had had clinical symptoms of PTSD and
these laboratory findings for many years.
In a December 2001 letter, Dr. Monson indicates that she had
been providing psychotherapy to the veteran for over one
year. She asked that VA adjudicators give due consideration
to her April 2001 psychological assessment (reported above).
She also described the course of development of a sufficient
therapeutic rapport between her and the appellant for the
appellant to be able to address the in-service sexual trauma.
In addition, she stated that the veteran described the onset
of her fibromyalgia as proximal to her trauma experiences.
Further, the appellant reportedly identified the onset of her
alcohol abuse around the time that she was sexually
victimized.
In a May 2002 letter, Lance Werner, M. Ed., of the
readjustment counseling service at the White River Junction
Vet Center, indicated that he was writing on behalf of the
veteran because of the adverse decisions the VA made on her
application for service connection for PTSD with a genesis in
her military service. Mr. Werner indicated that he had
extensively reviewed this case. He stated that having been
asked to comment as a consulting clinician, he felt the need
to question the policy that disallowed the claim of an
honorably discharged veteran, when all of her present and
past medical providers believed she was sexually traumatized
in the military, simply because corroborative documentation
had been destroyed in a fire. He asked that VA's decision be
reconsidered.
The veteran testified under oath at a hearing at the RO in
December 2001 and at a June 2002 hearing before the
undersigned. During the RO hearing, she was asked if there
was a family history of alcoholism. She stated that there
was not. She stated that she married while in service, in
order to get out of service, but could not recall the date of
her marriage. She stated that her husband was unaware of the
sexual assaults. The marriage was of short duration. During
the hearing before the undersigned, she was asked whether she
had any problems with alcohol prior to service and she
responded that alcohol was not permitted in her family.
However, VA medical records indicate that there was a family
history of alcoholism and alcohol was indeed permitted in the
family. An October 1998 VA treatment report indicates that
she reported alcoholism in the family. A March 2003
treatment report indicates that her family of origin was
marked by alcoholism (and may also carry other aspects of
dysfunction which were not explored). A March 2003 treatment
report indicates that her father was an alcoholic and that
her grandfather died of acute alcohol poisoning. An April
2003 treatment report indicates that her father was an
alcoholic and died of acute alcohol poisoning.
After consideration of the evidence of record and the
applicable law and regulation, the Board finds that service
connection for PTSD is not warranted. The veteran has
provided testimony under oath regarding her family history,
which is in direct conflict with information she provided to
her health care providers. Either what she stated to the
undersigned and during her RO hearing (no alcoholism in the
family and no alcohol permitted in her family) was not true,
or the information she provided to her health care providers
regarding alcoholism in the family was not true. They cannot
possibly have all been true. It is the Board's belief that
there was indeed a family history of alcoholism and she
denied this under oath in an attempt to bolster her claim
that there was a change in her behavior (alcoholism) which
was caused by inservice trauma. Given her conflicting
statements, and especially since she denied, under oath,
having a family history of alcohol, the Board finds her not
to be credible. Other conflicting statements in the file
include a statement on her application for Social Security
Administration benefits wherein she reported having completed
13 years of education, held positions in a travel agency from
1980 to 1984, as a shop keeper from 1984 to 1986, as a
cashier from 1986 yo 1987, as an office manager in 1988, and
as a shop keeper from 1989 until 1994. This statement
conflicts with a statement made to a VA psychiatrist in 1998
wherein the veteran stated that she had a Bachelor of Science
degree from the University of Maryland, work experience with
IBM in Sweden, was a physical education teacher for 12 years,
then owned a store until 1996. As she is found to not be
credible, the Board also does not accept her assertion of
inservice trauma as true.
The Board notes that the veteran has submitted a letter from
a friend, Ms. A.T., dated in September 2003, in support of
her contention that there were behavioral changes after
service. In this letter, Ms. A.T. stated that she knew the
appellant in Sweden after her return from military service.
There was deep sadness, and at that time, Ms. A.T. attributed
it to the appellant's loneliness, hard work, and the fact
that she was caring for her aging mother. She was reportedly
very depressed. She was happy one day, and the next day
suffering from unbearable sadness and always trying to mask
her inner feelings. She was drinking more and more. She
never admitted to being in pain and never talked about her
problems.
The Board does not find that this letter supports the
assertion that she had changes in behavior after service due
to inservice personal trauma. Ms. A.T. indicates that she
knew the veteran after her return from service. Thus, she is
not qualified to attest to any changes in her behavior from
before entry into service. Ms. A.T. is only qualified to
comment on the appellant's behavior after service. In this
regard, the Board must point out there appears to have been
severe psychiatric problems even before service. It is
specifically noted that an October 1998 treatment report
notes her prior psychiatric history to include cutting her
wrists in 1957, when she first moved to the United States.
Thus, although the claimant may have exhibited the symptoms
Ms. A.T. reported, the Board is not at all convinced that
such symptoms stemmed from service.
The Board also notes that the Joint Motion, citing to Patton
v. West, 12 Vet. App. 272 (1999), and YR v. West, 11 Vet.
App. 393 (1998), indicates that appropriate consideration
should be given the post-service opinion the veteran's mental
health providers, as these can be probative to establish the
occurrence of an alleged personal assault in service. In
this case, however, since the Board finds that the veteran is
not credible, the also Board finds that the mental health
professional opinions regarding inservice trauma are not
probative as they are based on her reports as to the
occurrences. The Board has reviewed the records from all
treatment providers and finds that the history of in-service
sexual trauma were, at all times, reported by the veteran
herself. The reports of sexual trauma were made during the
course of interview and conventional treatment (e.g., the
veteran was not under hypnosis when reporting the alleged
sexual trauma and was in full control as to what to report).
Thus, it is the Board's conclusion that the appellant's
allegation of sexual assault in service is not credible, and
that any medical nexus opinion based on self-reports of such
assault is not probative.
The Board acknowledges that the basis for denial of this
claim appears rather harsh. The Board must point out that VA
does not lightly make such findings. The undersigned judge
has carefully reviewed the evidence and the appellant's
testimony and given this matter a considerably great amount
of thought before making a final determination. In the end,
it is the Board's conclusion that the veteran's assertions
regarding personal assault during service are not credible
and the claim must be denied. In reaching this decision, the
Board considered the doctrine of reasonable doubt; however,
as the preponderance of the evidence is against the claim,
the doctrine is not for application. Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
ORDER
Service connection for PTSD is denied.
____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs